The Supreme Court Is Deciding Whether It Should Criminalize Pro-Immigrant Speech
The First Amendment seemed like one law that would go unchallenged in the United States. With bipartisan support and the general consensus that freedom of speech is a tenet of democracy seemed to ensure its safety. However, the Supreme Court has decided to hear the case of United States v. Sineneng-Smith.
The judges will decide if pro-immigrant speech that might encourage undocumented immigrants to illegally enter the United States is unlawful. The verdict could have serious consequences not just for migrants but for their advocates as well.
The Supreme Court has a conservative majority and the current iteration of the Republican party has taken a rather extreme anti-immigrant stance lately, two factors which could heavily affect the outcome of the decision.
The case concerns an obscure “encouragement provision” of immigration law.
According to Slate, a section in our immigration code forbids the encouragement of an “alien” to reside in the United States if the individual has no legal status. The case made its away to the Supreme Court by way of Evelyn Sineneng-Smith.
Sineneng-Smith was charged and convicted of fraud by the Trump administration when, as an immigration consultant, she incorrectly told clients they could stay in the U.S. under a program she had already known ended. However, prosecutors also convicted her on the encouragement provision.
The issue is Sineneng-Smith is being charged for what she said on a very literal basis. The fraud is the obvious wrong-doing, but now the courts will have to decide: are the words themselves?
What if it is an undocumented person’s best course of action to remain in the U.S. without papers, which may be the case with our esoteric and fluctuating immigration system, on top of the implied moral conundrum.
“An advocate or lawyer now has to worry, given the government’s position in this case, that this language … may trigger criminal liability just for correctly advising a noncitizen,” Manny Vargas, senior counsel for the nonprofit Immigrant Defense Project in New York City, told Slate.
Advocates will be forced to second guess the advice they give to clients in fear of facing legal action.
The 9th U.S. Circuit Court of Appeals allowed Sineneng-Smith to appeal.
Although the courts struck down Sineneng-Smith’s fraud appeal, they reversed the encouragement conviction. A three-judge majority believed the provision criminalizes constitutionally protected speech, therefore, violating the First Amendment.
The judges asserted that the provision, “criminalizes a substantial amount of protected expression in relation to the statute’s narrow legitimate sweep,” and that it, “potentially criminalizes the simple words—spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client—’I encourage you to stay here.’”
However, the Trump administration decided to legally challenge the 9th Circuit sending the case to the Supreme Court who could choose to either accept or reject the case. They chose to accept it.
The encouragement provision provides “appropriate punishment for defendants who seek enrichment by incentivizing or procuring violations of the immigration laws by aliens who illegally enter or remain in the United States,” the government wrote in a court filing.
The Trump Administration also suggested the 9th Circuit’s “hypotheticals” are hyperbole and that the provision is an essential law enforcement tool.
The ACLU stands against the encouragement provision.
“Anytime you hear a government lawyer saying ‘trust us’ when our free speech rights are at stake, you should run in the other direction,” ACLU deputy legal director Cecillia Wang said.
Wang noted that there cannot be any discourse about immigration if individuals are banned from mentioning the subject on social media.
“I write an op-ed saying, ‘I disagree with the U.S. immigration laws and I believe that ‘Dreamers’ should stay in the U.S., you belong here,” she said. “I can’t leave it up to good faith in prosecutors not to come after me and try to throw me in federal prison for doing that.”
Vargas believes that the fact that the Supreme Court has taken on the case, coupled with the Trump administration advocating for the provision itself — is not a good sign. According to Slate, the provision is little known that has existed for years but has rarely been enforced until now.
The only thing that’s different now is that the current administration has amped up anti-immigrant rhetoric along with increasingly extreme tactics to enforce those sentiments.
“The fact that the U.S. is looking to get the Supreme Court to reverse the lower court’s finding … is an indication that the government wants to use this provision,” Vargas told Slate.
If you’re wondering if the Supreme Court could really ban freedom of speech in a country that regularly bans people from even entering it, that banned couples from getting married, that fairly recently banned one race from using the same water fountains as another race, then you might be asking the wrong questions.